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§ 1772. Where, however, the seller knew of the use to which the goods were to be applied, then damages may be recovered for losses sustained for a failure to supply the goods to be so applied, subject only to the condition that the losses complained of are such as result naturally from the breach and are not remote or speculative.

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1773.. Thus, where the contemplated use was known to the seller at the time he made the contract, it was held that for a failure to furnish a threshing machine as agreed, the buyer, who had not been able to procure another elsewhere, might recover for expense in caring for his grain and for losses caused by its exposure to the weather while he was waiting for the machine upon the seller's promise to supply it forthwith. So, one who had agreed to supply a dealer with the ice he needed for his ice chest in which he kept fresh meat for sale was held liable for a loss of the meat caused by his failure to supply the ice, which the buyer could not procure elsewhere.2 And where there was a contract to supply water for use in a boiler to make steam for heating a greenhouse, the seller who had failed to supply the water was held liable for a loss to plants therein caused by freezing.3

§ 1774. -. So, one who has failed to supply a hotel with the necessary furniture as agreed, is liable for the loss caused by inability to rent the rooms until the furniture could be obtained. And one who had agreed to supply machines which could not be procured in the market was held liable for losses caused by the consequent impossibility of launching the business in which the machines were to be used. And so it has been

1 Smeed v. Foord (1859), 1 El. & El. 602, 102 Eng. Com. L. 600. But he was held not entitled to damages for a fall in the market price of wheat in the meantime.

Mass. 404, 37 N. E. R. 204, following Stock v. Boston (1889), 149 Mass. 410, 21 N. E. R. 871, 14 Am. St. R. 430.

4 Berkey & Gay Furniture Co. v. Hascall (1890), 123 Ind. 502, 24 N. E.

2 Hammer v. Schoenfelder (1879), R. 336, 8 L. R. A. 65, Mechem's Cases

-47 Wis. 455, 2 N. W. R. 1129.

3 Watson v. Needham (1894), 161

on Damages (2d ed.), 252.

5 Abbott v. Hapgood (1889), 150

held that one who, with knowledge of the contemplated use, has agreed to supply fertilizer for a crop of cotton,' or poison to kill the worms which infest it,2 is liable, upon default, for a consequent failure or destruction of the crop.

§ 1775. So where the contract was to supply goods known to be intended for use in the performance of a contract between the vendee and the State for the erection of a public building, the enhanced cost of getting other material and the direct losses caused by the necessary suspension of work in the interval may be made the basis of recovery.3

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§ 1776. So where a sewing machine manufacturing company had encouraged parties to establish agencies for the

Mass. 248, 22 N. E. R. 907, 15 Am. St. R. 193, Mechem's Cases on Damages (2d ed.), 136.

on the road with the goods, where the seller knew when the salesman was to go on the road, though he did

1 Bell v. Reynolds (1885), 78 Ala. not know that the salesman would 511, 56 Am. R. 52.

2 Jones v. George (1884), 61 Tex. 345, 48 Am. R. 280. In an action for breach of contract to deliver tobaccoflues for curing plaintiff's crop, held, that the seller must be presumed to know the proper season for curing tobacco, and the loss that will result from lack of flues, and he is liable for the whole loss sustained by plaintiff owing to his non-delivery. Neal v. Hardware Co. (1898), 122 N. C. 104, 29 S. E. R. 96.

Where plaintiff was compelled to sell cattle at a sacrifice by reason of defendant's breach of a contract to furnish distillery slop to fatten them, he may recover the reasonable profits he would have made if the contract had been carried out. New Market Co. v. Embry (1899), 48 S. W. R. 980.

11

Ky.

A purchaser of goods may recover from the seller who fails to deliver according to contract for loss of time of his salesman who was to go

be idle if the goods were not delivered. Blumenthal v. Stahle (1896), 98 Iowa, 722, 68 N. W. R. 447.

Where a seller of drugs fails to deliver, and the buyer loses time in waiting for and preparing for the goods, and is at the expense of hiring a

doctor in preparation therefor, these losses are not too remote to be recovered in damages. Moffett-West Drug Co. v. Byrd (1898), Ind. Ter.

43 S. W. R. 864.

Where both parties understand that the transportation of cattle sold will have to be specially provided for, and the buyer pays a railroad for holding cars in readiness for cattle that the vendor fails to deliver, he may recover this amount as damages. Hockersmith v. Hanley (1896), 29 Oreg. 27, 44 Pac. R. 497.

3 Vickery v. McCormick (1888), 117 Ind. 594 [citing Louisville, etc. R. Co. v. Hollerbach, 105 Ind. 137; Pennsylvania R. Co. v. Titusville, etc. Co., 71 Pa. St. 350].

sale of its goods in a foreign country and agreed to supply the goods and give certain exclusive rights of sale, it was held that, upon repudiation by the company, the other parties might recover the profits which they could show with reasonable certainty would have resulted from the business. And the same ruling was made where the manufacturer of goods failed to supply them at a time when they could not be obtained in the market, whereby the buyer lost the profit which he would have made on their resale.2

§ 1777. No damages for purely conjectural, speculative or remote losses. Under no one of these rules, however, are damages to be recovered for losses which are uncertain, remote or speculative. Damages may be had, as has been already seen,3 for the loss of profits under existing contracts where the fact and the amount of that loss can be shown with reasonable certainty. But profits which the buyer contends he might have received upon contracts which he might have made are obviously too speculative and conjectural to be used as the foundation for a claim for damages.

§ 1778. For like reason, profits which the plaintiff contends he would have made at some other business or with some other goods if he had not expected to receive the ones in question must also be ordinarily too remote. As said in a recent case, "the losses recoverable on breaches of contract are those directly connected with it and arising from the breach. The

1 Wakeman v. Wheeler & Wilson Mfg. Co. (1886), 101 N. Y. 205, 54 Am. R. 676 (limiting Taylor v. Bradley, 39 N. Y. 129; distinguishing Mitchell v. Read, 84 N. Y. 556, and disapproving Howe Machine Co. v. Bryson, 44 Iowa, 159).

2 Bluegrass Cordage Co. v. Luthy (1896), 98 Ky. 583, 33 S. W. R. 835.

3 See ante, § 1763 et seq.

+ See Brigham v. Carlisle (1884), 78 Ala. 243, Mechem's Cases on Damages, 152, and cases cited; Sherman

Center Town Co. v. Leonard (1891), 46
Kan. 354, 26 Pac. R. 717, 26 Am. St.
R. 101, Mechem's Cases, 147, and
cases cited post, § 1809.

5 In an action for breach of contract of sale of physician's practice, damages for the amount the purchaser would have made from professional practice given up, relying on the contract, do not arise from the breach complained of. Rigney v. Monette (1895), 47 La. Ann. 648, 17 S. R. 211.

law does not contemplate indemnity for profits which the party supposes he would have derived from some business he claims he would have pursued if he had not made the contract alleged to have been violated."1

§ 1779. And so, as between two possible methods by which the loss might be computed, the law prefers that which leads to the more certain and least speculative results. Thus, as has been seen, the damages to be recovered for not supplying a machine or other article as agreed are usually the market value for which another may be procured, and not the profits which might have been made from its use. And, for like reasons, the damages to be recovered for the loss of the use of the property are to be estimated with reference to rental value or fair interest upon investment, and not upon the uncertain and speculative basis of the profit which might have been made from its use.

§ 1780. Pleading special damages. For all those losses which are the usual and necessary consequences of the seller's default, the buyer may recover damages without resorting to special allegations; but when the object is to recover for the unusual consequences those which have actually happened in this case but do not necessarily or ordinarily happen,— the plaintiff must, in his pleadings, allege the special injury with

Rigney v. Monette, supra.

2 See ante, § 1761.

3 See, for example, Griffin v. Colver (1858), 16 N. Y. 489, 69 Am. Dec. 718, Mechem's Cases on Damages (2d ed.), 126; Brownell v. Chapman (1892), 84 Iowa, 504, 51 N. W. R. 249, 35 Am. St. R. 326, Mechem's Cases on Damages, 139. See also Sherman Center Town Co. v. Leonard (1891), 46 Kan. 354, 26 Pac. R. 717, 26 Am. St. R. 101, Mechem's Cases on Damages, 147.

4 Paola Gas Co. v. Paola Glass Co. (1896), 56 Kan. 614, 44 Pac. R. 621, 54 Am. St. R. 598, citing many cases. Here it was held that the damages

to be recovered for not supplying gas as agreed for the operation of a glass factory in a country where glass making was a new and untried industry would be the fair rental value of the property thereby rendered idle, if it had a rental value, or, if not, then interest on the capital invested, and not the prospective prof its which the business might have earned. The latter, under the circumstances, are too contingent, uncertain and speculative.

4 Smith v. Lime Co. (1898), 57 Ohio St. 518, 49 N. E. R. 695.

such particularity as reasonably to apprise the defendant of the origin, nature and extent of the losses for which damages will be sought.1

2. Where the Goods have been Delivered.

§ 1781. Substantially the same remedies as the preceding. Where, in pursuance of the contract of sale, or as part of it, or because of it, the goods have been delivered to the buyer before the transfer of the title, the buyer's remedies would ordinarily be, at least, those to which, as has been seen in the preceding sections, he would be entitled if the goods had not been delivered. He would, however, in addition, have the advantages which flow from possession. If, as in certain cases of the conditional contract to sell, he has no definite right to possession under the contract, his possession might not be of great avail; but if, by the terms of the contract, he is entitled to possession until default on his part, the law would protect his possession, and upon performance or tender of performance would confirm his title and thus put it beyond the seller's power to disturb it.

II.

WHERE THE TITLE HAS PASSED.

§ 1782. In general. The question of the buyer's remedies, where the title has passed to him, may present two phases: (1) The seller, though the title has passed, may refuse to deliver the goods; or (2) though the title has passed and the goods are delivered, they prove not to be such in title, kind, quality or condition as they were expressly or impliedly warranted or represented to be. These two aspects may be separately considered.

11 Chitty on Pleading, 395; Treadwell v. Whittier (1889), 80 Cal. 575, 22 Pac. R. 266, 13 Am. St. R. 175; Stevenson v. Smith (1865), 28 Cal. 103, 87 Am. Dec. 107, Mechem's Cases on Damages, 70; Heister v. Loomis (1881),

47 Mich. 16, 10 N. W. R. 60, Mechem's
Cases, 75; Wabash W. Ry. Co. v.
Friedman (1892), 146 Ill. 583, 30 N. E.
R. 353, 34 N. E. R. 1111, Mechem's
Cases, 71.

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